Proposed Placing of new Ordinary Shares
THIS ANNOUNCEMENT IS NOT FOR RELEASE, PUBLICATION OR DISTRIBUTION, DIRECTLY OR INDIRECTLY, IN WHOLE OR IN PART, IN, INTO OR FROM THE UNITED STATES, CANADA, AUSTRALIA, THE REPUBLIC OF SOUTH AFRICA, THE REPUBLIC OF IRELAND OR JAPAN OR ANY OTHER JURISDICTION WHERE TO DO SO WOULD CONSTITUTE A BREACH OF THE RELEVANT SECURITIES LAWS OF SUCH JURISDICTION.
3 March 2011
AssetCo plc
Proposed Placing of 160,000,000 new Ordinary Shares at 10 pence per Ordinary Share
Further to the announcement on 14 February 2011, AssetCo plc ("AssetCo" or the "Company") announces that it intends to place 160,000,000 new Ordinary Shares with institutional investors at a price of 10 pence per Ordinary Share to raise gross proceeds of £16 million. The Placing Price represents a discount of approximately 28.6 per cent. to the Closing Price of 14 pence per Ordinary Share on 2 March 2011, being the last trading day before this Announcement.
The Placing, which has been underwritten by Arden Partners, is subject to shareholder approval and is conditional upon, inter alia, Admission.
Highlights
-- Gross placing proceeds of £16 million
-- Placing price of 10 pence per Ordinary Share
-- Placing is underwritten by Arden Partners
-- Net proceeds will be used to address the Company's short term liquidity and funding issues, to assist in the restructuring of the Group's indebtedness and to provide working capital for the future development of the Group
Tim Wightman, Chairman of AssetCo, said:
"We are pleased to announce this placing which will contribute to AssetCo's working capital requirements and place the Company in a stable financial position for the foreseeable future. We are delighted with the strong level of support for the business from new and existing shareholders".
This summary should be read in conjunction with, and is subject to, the full text of this Announcement. The Appendices to this Announcement (which form part of this Announcement) include the terms and conditions of the Placing.
Immediately following Admission the total issued share capital of the Company will be 250,712,740 Ordinary Shares, each with equal voting rights.
For further information please contact:
AssetCo plc +44 (0)20 8515 3999
Tim Wightman, Chairman
Arden Partners plc +44 (0)20 7614 5917
Richard Day
Adrian Trimmings
Cadogan PR +44 (0)7771 713608
Alex Walters
Emma Wigan
IMPORTANT NOTICES
This Announcement contains (or may contain) certain forward-looking statements with respect to certain of the Company's plans and its current goals and expectations relating to its future financial condition and performance and which involve a number of risks and uncertainties. No forward-looking statement is a guarantee of future performance and actual results could differ materially from those contained in the forward-looking statements. These forward-looking statements can be identified by the fact that they do not relate only to historical or current facts. Forward-looking statements sometimes use words such as "aim", "anticipate", "target", "expect", "estimate", "intend", "plan", "goal", "believe", or other words of similar meaning. Examples of forward-looking statements include, amongst others, statements regarding or which make assumptions in respect of the future performance of the Company's principal subsidiary undertakings, the provision of support services and training in fire and rescue, future foreign exchange rates, interest rates and currency controls, the future political and fiscal regimes in the overseas markets in which the Group operates, the Group's future financial position, plans and objectives for future operations and any other statements that are not historical fact. By their nature, forward-looking statements involve risk and uncertainty because they relate to future events and circumstances, including, but not limited to, economic and business conditions, the effects of continued volatility in credit markets, market-related risks such as changes in interest rates and foreign exchange rates, the policies and actions of governmental and regulatory authorities, changes in legislation, the further development of standards and interpretations under International Financial Reporting Standards ("IFRS") applicable to past, current and future periods, evolving practices with regard to the interpretation and application of standards under IFRS, the outcome of pending and future litigation or regulatory investigations, the success of future explorations, acquisitions and other strategic transactions and the impact of competition. A number of these factors are beyond the Company's control. As a result, the Group's actual future results may differ materially from the plans, goals and expectations set forth in the Company's forward-looking statements. Any forward-looking statements made in this Announcement by or on behalf of the Company speak only as of the date they are made. Except as required by the FSA, the London Stock Exchange, the AIM Rules or applicable law, the Company expressly disclaims any obligation or undertaking to release publicly any updates or revisions to any forward-looking statements contained in this Announcement to reflect any changes in the Company's expectations with regard thereto or any changes in events, conditions or circumstances on which any such statement is based.
This Announcement is for information purposes only and shall not constitute an offer to buy, sell, issue, or subscribe for, or the solicitation of an offer to buy, sell, issue, or subscribe for any securities, nor shall there be any sale of securities in any jurisdiction in which such offer, solicitation or sale would be unlawful prior to registration or qualification under the securities laws of any such jurisdiction. This Announcement has been issued by and is the sole responsibility of the Company.
No representation or warranty, express or implied, is or will be made as to, or in relation to, and no responsibility or liability is or will be accepted by Arden Partners, or by any of its affiliates or agents as to, or in relation to, the accuracy or completeness of this Announcement or any other written or oral information made available to or publicly available to any interested party or its advisers, and any liability therefore is expressly disclaimed.
Arden Partners, which is authorised and regulated in the United Kingdom by the FSA, is acting for the Company and for no-one else in connection with the Placing, and will not be responsible to anyone other than the Company for providing the protections afforded to clients of Arden Partners nor for providing advice to any other person in relation to the Placing or any other matter referred to herein.
The distribution of this Announcement and the offering of the Placing Shares in certain jurisdictions may be restricted by law. No action has been taken by the Company or Arden Partners that would permit an offering of such shares or possession or distribution of this Announcement or any other offering or publicity material relating to such shares in any jurisdiction where action for that purpose is required. Persons into whose possession this Announcement comes are required by the Company and Arden Partners to inform themselves about, and to observe such restrictions.
The price of shares and the income from them may go down as well as up and investors may not get back the full amount invested on disposal of the shares.
MEMBERS OF THE PUBLIC ARE NOT ELIGIBLE TO TAKE PART IN THE PLACING. THIS ANNOUNCEMENT (INCLUDING THE APPENDICES) AND THE TERMS AND CONDITIONS SET OUT IN THIS ANNOUNCEMENT ARE FOR INFORMATION PURPOSES ONLY AND ARE DIRECTED ONLY AT PERSONS WHO ARE: (A) (I) INVESTMENT PROFESSIONALS FALLING WITHIN ARTICLE 19(5) OF THE FINANCIAL SERVICES AND MARKETS ACT 2000 (FINANCIAL PROMOTION) ORDER 2005 (THE "ORDER"), OR (II) PERSONS FALLING WITHIN ARTICLE 49(2)(A) TO (D) ("HIGH NET WORTH COMPANIES, UNINCORPORATED ASSOCIATIONS, ETC") OF THE ORDER, OR (III) PERSONS TO WHOM IT MAY OTHERWISE BE LAWFULLY COMMUNICATED; (B) (I) PERSONS IN MEMBER STATES OF THE EUROPEAN ECONOMIC AREA WHO ARE QUALIFIED INVESTORS (AS DEFINED IN ARTICLE 2(1)(E) OF EU DIRECTIVE 2003/71/EC (THE "PROSPECTUS DIRECTIVE")), AND/OR (II) PERSONS IN THE UNITED KINGDOM WHO ARE QUALIFIED INVESTORS; AND (C) TO WHOM IT MAY OTHERWISE LAWFULLY BE COMMUNICATED (ALL SUCH PERSONS TOGETHER BEING REFERRED TO AS "RELEVANT PERSONS"). THIS ANNOUNCEMENT (INCLUDING THE APPENDICES) AND THE TERMS AND CONDITIONS SET OUT IN THIS ANNOUNCEMENT MUST NOT BE ACTED ON OR RELIED ON BY PERSONS WHO ARE NOT RELEVANT PERSONS. ANY INVESTMENT OR INVESTMENT ACTIVITY TO WHICH THIS ANNOUNCEMENT (INCLUDING THE APPENDICES) AND THE TERMS AND CONDITIONS SET OUT IN THIS ANNOUNCEMENT RELATE IS AVAILABLE ONLY TO RELEVANT PERSONS AND WILL BE ENGAGED IN ONLY WITH RELEVANT PERSONS. THIS ANNOUNCEMENT (INCLUDING THE APPENDICES) DOES NOT ITSELF CONSTITUTE AN OFFER FOR SALE OR SUBSCRIPTION OF ANY SECURITIES IN ASSETCO PLC.
Persons (including individuals, funds or otherwise) by whom or on whose behalf a commitment to acquire Placing Shares has been given ("Placees") will be deemed to have read and understood this Announcement, including the Appendices, in its entirety and to be making such offer on the terms and conditions, and to be providing the representations, warranties, acknowledgements and undertakings contained in the Appendices. In particular, each such Placee represents, warrants and acknowledges that it is: (i) a Relevant Person (as defined above) and undertakes that it will acquire, hold, manage or dispose of any Placing Shares that are allocated to it for the purposes of its business; and (ii) outside the United States and is subscribing for the Placing Shares in an "offshore transaction" (within the meaning of Regulation S under the United States Securities Act of 1933, as amended (the "Securities Act")).
This Announcement, including the Appendices, is not for distribution, directly or indirectly, in or into or from the United States (including its territories and possessions, any state of the United States and the District of Columbia), Canada, Australia, the Republic of South Africa or Japan or any jurisdiction into which the same would be unlawful, subject to certain limited exceptions (each a "Restricted Jurisdiction"). This Announcement does not constitute or form part of an offer or solicitation to purchase or subscribe for shares in the capital of the Company in a Restricted Jurisdiction, subject to certain limited exceptions. In particular, the Placing Shares referred to in this Announcement have not been, and will not be, registered under the Securities Act or under the securities legislation of any state of the United States, and may not be offered or sold in the United States absent registration or pursuant to an exemption from, or in a transaction not subject to, the registration requirements under the Securities Act. Subject to exceptions, the Placing Shares referred to in this Announcement are being offered and sold only outside the United States in accordance with Regulation S under the Securities Act. No public offering of securities of the Company will be made in connection with the Placing in the United Kingdom, the United States or elsewhere. The relevant clearances have not been, and nor will they be, obtained from the securities commission of any province or territory of Canada; no prospectus or admission document has been lodged with, or registered by, the Australian Securities and Investments Commission or the Japanese Ministry of Finance; and the Placing Shares have not been, and nor will they be, registered under or offered in compliance with the securities laws of any state, province or territory of Canada, Australia, the Republic of South Africa or Japan. Accordingly, the Placing Shares may not (unless an exemption under the relevant securities laws is applicable) be offered, sold, resold or delivered, directly or indirectly, in or into or from a Restricted Jurisdiction.
The Placing Shares have not been approved or disapproved by the US Securities and Exchange Commission, any State securities commission or any other regulatory authority in the United States, nor have any of the foregoing authorities passed upon or endorsed the merits of the Placing or the accuracy or adequacy of this Announcement. Any representation to the contrary is unlawful.
Persons (including, without limitation, nominees and trustees) who have a contractual or other legal obligation to forward a copy of the Appendices or this Announcement should seek appropriate advice before taking any action.
The Placing Shares to which this Announcement relates may be illiquid and/or subject to restrictions on their resale. Prospective subscribers for the Placing Shares offered should conduct their own due diligence on the Placing Shares. If you do not understand the contents of this Announcement you should consult an authorised financial adviser.
The Placing Shares to be issued pursuant to the Placing will not be admitted to trading on any stock exchange other than the London Stock Exchange. Neither the content of the Company's website nor any website accessible by hyperlinks on the Company's website is incorporated in, or forms part of, this Announcement.
THIS ANNOUNCEMENT IS NOT FOR RELEASE, PUBLICATION OR DISTRIBUTION, DIRECTLY OR INDIRECTLY, IN WHOLE OR IN PART, IN, INTO OR FROM THE UNITED STATES, CANADA, AUSTRALIA, THE REPUBLIC OF SOUTH AFRICA OR JAPAN OR ANY OTHER JURISDICTION WHERE TO DO SO WOULD CONSTITUTE A BREACH OF THE RELEVANT SECURITIES LAWS OF SUCH JURISDICTION.
3 March 2011
AssetCo plc
Proposed Placing of 160,000,000 new Ordinary Shares at 10 pence per Ordinary Share
1. Introduction
AssetCo plc ("AssetCo" or the "Company") announces that it intends to place 160,000,000 new Ordinary Shares with institutional investors at a price of 10 pence per Ordinary Share to raise gross proceeds of £16 million. The Placing Price represents a discount of approximately 28.6 per cent. to the Closing Price of 14 pence per Ordinary Share on 2 March 2011, being the last trading day before this Announcement. The Placing, which has been underwritten by Arden Partners, is conditional, inter alia, upon Admission.
2. Background to and reasons for the Placing
Further to the Company's announcements on 14 and 21 February 2011, the Board has determined that the appropriate course of action to address the short term funding requirements of the Group is to carry out the Placing in order to provide the Group with a stable capital base for the medium term.
The short term funding requirement resulted from delays in securing the refinancing transaction detailed in the interim results of the Group announced on 13 December 2010 and as a consequence a winding-up petition being presented by a substantial creditor in relation to an outstanding payment obligation. This action has precluded the Company from obtaining short-term bridging finance and it is now, therefore raising additional equity finance. The substantial creditor has agreed to withdraw the winding-up petitions on receipt of the amounts due to it from the proceeds of the Placing. During this period, the Company has been in discussions with its banks and principal creditors. Each of the Group's banks has given a waiver of the breaches of the Group's facility agreements which is conditional amongst other things on the Placing taking place.
The Company has received approaches from various third parties in relation to short-term funding linked to possible offers to acquire the Company. The Directors have carefully considered each of these approaches and concluded that the Placing is the most appropriate route to follow in the interests of the shareholders and creditors of the Group. The Company is no longer in any discussions with any of these third parties relating to these various proposals.
The Company has received a threat of legal proceedings from an investor in the Group relating to certain historic transactions. The Directors believe that these claims are without merit.
Without the additional equity funding being forthcoming through the Placing, the Directors believe that it is likely that the Group's banks would withdraw their support which would mean that the Company could not continue in its current form. The Directors have concluded that in the current circumstances, it would not be practicable to carry out a pre-emptive offer to all Shareholders.
3. Use of proceeds
The net proceeds of the Placing will be used to address the Company's short term liquidity and funding issues, to assist in the restructuring of the Group's indebtedness and to provide working capital for the future development of the Group.
4. The Placing
The Company proposes to raise £16 million (before expenses) through the issue of the Placing Shares at the Placing Price. The Placing Price represents a discount of approximately 28.6 per cent. to the Closing Price of 14 pence per Ordinary Share on 2 March 2011, being the last practicable date prior to this Announcement. The Placing Shares will represent approximately 63.8 per cent. of the Company's issued ordinary share capital immediately following Admission.
Pursuant to the terms of the Placing Agreement, Arden Partners has conditionally agreed to use its reasonable endeavours, as agent for the Company, to place the Placing Shares at the Placing Price with certain institutional and other investors or, failing which, subscribe for such shares itself. The Placing has been fully underwritten by Arden Partners. The Placing Agreement is conditional upon, inter alia:
· the passing of the Resolutions at the General Meeting;
· the Placing Agreement becoming unconditional in all respects and not having been terminated in accordance with its terms;
· the waivers from the Group's banks remaining in force;
· no material adverse change or material breach of warranty occurring prior to Admission;
· Admission becoming effective on or before 8.00 a.m. on 22 March 2011 (or such later time and/or date as the Company and Arden Partners may agree, but in any event by no later than 8.00 a.m. on 15 April 2011);
The Placing Agreement contains warranties from the Company and certain of the Directors in favour of Arden Partners in relation to, inter alia, the accuracy of this Announcement and certain other matters relating to the Group and its business. In addition, the Company has agreed to indemnify Arden Partners in relation to certain liabilities it may incur in respect of the Placing. Arden Partners has the right to terminate the Placing Agreement in certain circumstances prior to Admission, in particular, for force majeure or in the event of a material breach of the warranties set out in the Placing Agreement.
Application will be made for the Placing Shares to be admitted to trading on the AIM market of the London Stock Exchange. It is expected that Admission will become effective at 8.00 a.m. on 22 March 2011 and that dealings in the Placing Shares will commence at that time.
The Placing Shares will, when issued, rank pari passu in all respects with the Existing Ordinary Shares, including the right to receive dividends and other distributions declared following Admission. It is expected that CREST accounts will be credited on the day of Admission and that share certificates (where applicable) will be dispatched by first class post, at the risk of Shareholders, by 15 April 2011.
5. Share Reorganisation and Circular to shareholders
As the Placing Price is at below the current nominal value of 25 pence per Ordinary Share and the Company is prohibited by the Act from issuing shares at less than their nominal value, the Company is proposing to subdivide each existing Ordinary Share of 25 pence into an Ordinary Share of one penny and a Deferred Share. A resolution to approve the Share Reorganisation will be included in the notice of general meeting in the Circular which is expected to be despatched shortly.
In addition the Circular will include resolutions to provide the Directors with the necessary authorities to issue the Placing Shares and to amend the Company's Articles of Association to incorporate the rights of the Deferred Shares created pursuant to the Share Reorganisation.
6. Current Trading
Notwithstanding the financial difficulties faced by the Group prior to the Placing, trading is in line with expectations, due to the contractual nature of the business. Additional costs have been incurred as a result of the current situation which will impact the results but the pipeline of opportunities for the Group remains resilient.
7. Directors' participation in the Placing
Certain of the Directors are intending to subscribe for Placing Shares with an aggregate value at the Placing Price of £116,000. John Shannon will not be participating in the Placing but has provided a personal guarantee in support of the Company's overdraft facility.
8. Directors' recommendation
If the Placing does not proceed, the Directors believe that the Company will not be able to continue in its current form. The Circular will contain a recommendation from the Directors to vote in favour of the Resolutions as the Directors who hold Ordinary Shares have irrevocably undertaken to do so in relation to their own beneficial shareholdings of 27,374,403 Ordinary Shares, representing approximately 30.2 per cent. of the existing issued share capital of the Company.
APPENDIX 1
TERMS AND CONDITIONS
IMPORTANT INFORMATION FOR PLACEES ONLY REGARDING THE PLACING.
THIS ANNOUNCEMENT, INCLUDING THE APPENDICES AND THE INFORMATION CONTAINED HEREIN IS RESTRICTED AND IS NOT FOR PUBLICATION, RELEASE OR DISTRIBUTION, DIRECTLY OR INDIRECTLY, IN OR INTO OR FROM THE UNITED STATES, CANADA, AUSTRALIA, THE REPUBLIC OF SOUTH AFRICA, THE REPUBLIC OF IRELAND JAPAN OR ANY JURISDICTION IN WHICH THE SAME WOULD BE UNLAWFUL.
EACH PLACEE SHOULD CONSULT WITH ITS OWN ADVISERS AS TO LEGAL, TAX, BUSINESS AND RELATED ASPECTS OF A SUBSCRIPTION FOR THE PLACING SHARES.
Details of the Placing
Arden Partners has today entered into the Placing Agreement with the Company and certain of the Directors under which, subject to the conditions set out in that agreement Arden Partners has agreed to use its reasonable endeavours to procure subscribers for Placing Shares at the Placing Price with certain institutional and other investors or, failing which, to subscribe for such shares itself, as further described in this Announcement, and as set out in the Placing Agreement.
The Placing Shares will, when issued, rank pari passu in all respects with the Existing Ordinary Shares, including the right to receive dividends and other distributions declared, made or paid following Admission.
Application for admission to trading
Application will be made to the London Stock Exchange for the admission of the Placing Shares to trading on AIM. It is expected that Admission will become effective at 8.00 a.m. on 22 March 2011 and that dealings in the Placing Shares will commence at that time.
Participation in, and principal terms of, the Placing
Arden Partners is arranging the Placing as agent for and on behalf of the Company. Arden Partners will determine in its absolute discretion the extent of each Placee's participation in the Placing, which will not necessarily be the same for each Placee. No commissions will be paid to or by Placees in respect of their agreement to acquire any Placing Shares.
Each Placee will be required to pay to Arden Partners, on the Company's behalf, the Placing Price for each Placing Share agreed to be acquired by it under the Placing in accordance with the terms set out herein. Each Placee's obligation to acquire and pay for Placing Shares under the Placing will be owed to Arden Partners and the Company. Each Placee has an immediate, separate, irrevocable and binding obligation, owed to Arden Partners, to pay to it (or as it may direct) in cleared funds an amount equal to the product of the Placing Price and the number of Placing Shares such Placee has agreed to subscribe for. Each Placee will be deemed to have read and understood the Appendices in their entirety, to be participating in the Placing upon the terms and conditions contained in the Appendices, and to be providing the representations, warranties, agreements, acknowledgements and undertakings, in each case as contained in the Appendices. To the fullest extent permitted by law and applicable FSA rules (the "FSA Rules") (i) Arden Partners, (ii) any of its directors, officers, employees or consultants, or (iii) to the extent not contained within (i) or (ii), any person connected with Arden Partners as defined in the FSA Rules ((i), (ii) and (iii) being together "affiliates" and individually an "affiliate"), shall not have any liability to Placees or to any person other than the Company in respect of the Placing.
Conditions of the Placing
The obligations of Arden Partners under the Placing Agreement are conditional on, amongst other things:
(a) none of the warranties or undertakings in the Placing Agreement being or having become untrue, inaccurate or misleading in any material respect at any time before Admission;
(b) the Company having complied with its obligations under the Placing Agreement, to the extent that those obligations are required to be performed prior to Admission;
(c) all of the resolutions to be proposed at the general meeting convened pursuant to the Circular being validly passed;
(d) there not having been, in the opinion of Arden Partners (acting in good faith), a material adverse change in the operations, financial condition or trading position of the Company or any other member of the Group at any time prior to Admission; and
(e) Admission taking place by 8.00 a.m. on 22 March 2011 (or such later date as Arden Partners may otherwise determine being no later than 8.00 a.m. on 15 April 2011).
If any of the conditions contained in the Placing Agreement in relation to the Placing Shares are not fulfilled or waived by Arden Partners, by the respective time or date where specified, the Placing will not proceed and the Placee's rights and obligations hereunder in relation to the Placing Shares shall cease and terminate at such time and each Placee agrees that no claim can be made by the Placee in respect thereof.
Arden Partners may, at its discretion and upon such terms as it thinks fit, waive compliance by the Company with the whole or any part of any of the Company's obligations in relation to the conditions in the Placing Agreement. Any such extension or waiver will not affect Placees' commitments as set out in this Announcement and the Circular.
None of Arden Partners, the Company or any other person shall have any liability to any Placee (or to any other person whether acting on behalf of a Placee or otherwise) in respect of any decision they may make as to whether or not to waive or to extend the time and/or the date for the satisfaction of any condition to the Placing nor for any decision they may make as to the satisfaction of any condition or in respect of the Placing generally, and, by participating in the Placing, each Placee agrees that any such decision is within the absolute discretion of Arden Partners.
Termination of the Placing Agreement
Arden Partners is entitled, at any time before Admission, to terminate the Placing Agreement in relation to its obligations in respect of the Placing Shares by giving notice to the Company if, amongst other things:
(a) any of the warranties in the Placing Agreement was, when given, or becomes untrue, inaccurate or misleading in any material respect at any time up to Admission and such breach of warranty is not remedied to Arden Partners' reasonable satisfaction on or by Admission; or
(b) the Company fails to comply with any of its obligations under the Placing Agreement; or
(c) any statement contained in this Announcement or the Circular is untrue, incorrect or misleading in a material respect or a new matter has arisen or a change has taken place which would, if this Announcement or the Circular were published at that time, constitute a material omission therefrom; or
(d) any press or public announcement concerning the Group or the Placing has been made by or on behalf of the Group which has not been consented to by Arden Partners (such consent not to be unreasonably withheld or delayed) prior to its release (other than normal product, service or employment advertising or the giving of notices to employees of the Group otherwise than in relation to the Placing); or
(e) an event has occurred which constitutes a material adverse change in the operations, financial condition or trading position of the Company or any other member of the Group; or
(f) there shall develop, occur or come into effect any substantial change in national or international, financial, economic, political, or market conditions or any outbreak of hostilities or acts of terrorism or any change in the financial markets or any calamity or national emergency or crisis which, in the opinion of Arden Partners (acting in good faith), is likely materially and adversely to affect the financial position, the business or the prospects of the Company taken as a whole or which is likely to cause a substantial deterioration in the price and/or value of the Placing Shares and which in any event renders the Placing or the creation of a market in the Placing Shares temporarily or permanently impractical or inadvisable or inappropriate to proceed with or materially prejudice the success of the Placing or dealings of the Placing Shares; or
(g) trading in any securities of the Company has been suspended or limited by the London Stock Exchange, or if trading generally on a major financial market is suspended, the effect of which, in the opinion of Arden Partners (acting in good faith), makes it impractical or inadvisable to proceed with the Placing in the manner contemplated herein or may adversely impact dealings in the Placing Shares following Admission or is likely materially and adversely to affect the price at which the Shares are traded on AIM
Upon such termination, the parties to the Placing Agreement shall be released and discharged (except for any liability arising before or in relation to such termination) from their respective obligations under or pursuant to the Placing Agreement subject to certain exceptions.
By participating in the Placing, Placees agree that the exercise by Arden Partners of any right of termination or other discretion under the Placing Agreement shall be within the absolute discretion of Arden Partners and that it need not make any reference to Placees and that it shall have no liability to Placees whatsoever in connection with any such exercise or failure so to exercise.
No prospectus
No offering document, or prospectus or admission document has been or will be submitted to be approved by the FSA or submitted to the London Stock Exchange in relation to the Placing and Placees' commitments will be made solely on the basis of the information contained in this Announcement (including the Appendices) released by the Company today and the Circular, subject to the further terms set forth in the contract note to be provided to individual prospective Placees.
Each Placee, by accepting a participation in the Placing, agrees that the content of this Announcement (including the Appendices) and the Circular is exclusively the responsibility of the Company and confirms that it has neither received nor relied on any other information, representation, warranty, or statement made by or on behalf of the Company or Arden Partners or any other person and none of Arden Partners or the Company nor any other person will be liable for any Placee's decision to participate in the Placing based on any other information, representation, warranty or statement which the Placees may have obtained or received. Each Placee acknowledges and agrees that it has relied on its own investigation of the business, financial or other position of the Company in accepting a participation in the Placing. Nothing in this paragraph shall exclude the liability of any person for fraudulent misrepresentation.
Registration and settlement
Settlement of transactions in the Placing Shares following Admission will take place within the CREST system administered by Euroclear UK & Ireland Limited ("CREST"), subject to certain exceptions, the Company reserves the right to require settlement for and delivery of the Placing Shares (or a portion thereof) to Placees in certificated form if, in Arden Partners' opinion, delivery or settlement is not possible or practicable within the CREST system or would not be consistent with the regulatory requirements in the Placee's jurisdiction.
Participation in the Placing is only available to persons who are invited to participate in it by Arden Partners.
A Placee's commitment to acquire a fixed number of Placing Shares under the Placing will be agreed orally with Arden Partners. Such oral agreement will constitute a legally binding commitment on such Placee's part to acquire that number of Placing Shares at the Placing Price on the terms and conditions set out or referred to in the Appendices and subject to the Company's memorandum and articles of association (as amended from time to time).
After such agreement is entered into, each Placee allocated Placing Shares in the Placing will be sent a contract note stating the number of Placing Shares allocated to it at the Placing Price and settlement instructions.
Each Placee agrees that it will do all things necessary to ensure that delivery and payment is completed in accordance with the standing CREST or certificated settlement instructions that it has in place with Arden Partners. Settlement should be through Arden Partners against CREST ID: DAQAQ, account designation: 2011600. For the avoidance of doubt, Placing allocations will be booked with a trade date of 2 March 2011 and settlement date of 22 March 2011, the date of Admission.
The Company will deliver the Placing Shares to the CREST account operated by Arden Partners as agent for the Company and Arden Partners will enter its delivery (DEL) instruction into the CREST system. The input to CREST by a Placee of a matching or acceptance instruction will then allow delivery of the relevant Placing Shares to that Placee against payment.
It is expected that settlement will take place on 22 March 2011 on a delivery versus payment basis. Interest is chargeable daily on payments not received from Placees on the due date in accordance with the arrangements set out above at the rate of two percentage points above LIBOR as determined by Arden Partners.
Each Placee is deemed to agree that, if it does not comply with these obligations, Arden Partners may sell any or all of the Placing Shares allocated to that Placee on such Placee's behalf and retain from the proceeds, for Arden Partners' account and benefit, an amount equal to the aggregate amount owed by the Placee plus any interest due. The relevant Placee will, however, remain liable for any shortfall below the aggregate amount owed by it and may be required to bear any stamp duty or stamp duty reserve tax (together with any interest or penalties) which may arise upon the sale of such Placing Shares on such Placee's behalf.
If Placing Shares are to be delivered to a custodian or settlement agent Placees should ensure that the trade confirmation is copied and delivered immediately to the relevant person within that organisation. Insofar as Placing Shares are registered in a Placee's name or that of its nominee or in the name of any person for whom a Placee is contracting as agent or that of a nominee for such person, such Placing Shares should, subject as provided below, be so registered free from any liability to UK stamp duty or stamp duty reserve tax. Placees will not be entitled to receive any fee or commission in connection with the Placing.
Representations and warranties
By participating in the Placing each Placee (and any person acting on such Placee's behalf) acknowledges, undertakes, represents, warrants and agrees (as the case may be) the following. It:
1. has read this Announcement, including the Appendices, and the Circular in their entirety;
2. acknowledges that the Ordinary Shares are admitted to trading on AIM, and the Company is therefore required to publish certain business and financial information in accordance with the rules and practices of AIM (collectively, the "Public Information"), which includes a description of the nature of the Group's business and its most recent balance sheet and profit and loss account, and that it is able to obtain or access such Public Information without undue difficulty and is able to obtain access to such information or comparable information concerning any other publicly traded company without undue difficulty;
3. acknowledges and agrees that no offering document, or prospectus or admission document has been or will be prepared in connection with the Placing and represents and warrants that it has not received a prospectus, admission document or other offering document in connection with the Placing or the Placing Shares;
4. acknowledges and agrees that none of Arden Partners or the Company or any of their respective affiliates or any person acting on behalf of any of them has provided, and will not provide, it with any material regarding the Placing Shares or the Company or any other person other than this Announcement and/or the Circular; nor has it requested any of Arden Partners, the Company, any of their respective affiliates or any person acting on behalf of any of them to provide it with any such information;
5. acknowledges and agrees that (i) it and, if different, the beneficial owner of the Placing Shares is not, and at the time the Placing Shares are acquired will not be located in or residents of a Restricted Jurisdiction unless a relevant exemption applies, and (ii) the Placing Shares have not been and will not be registered under the securities legislation of the United States, Australia, Canada, the Republic of South Africa or Japan and, subject to certain exceptions, may not be offered, sold, taken up, renounced or delivered or transferred, directly or indirectly, in or into those jurisdictions;
6. acknowledges and agrees that the content of this Announcement and the Circular is exclusively the responsibility of the Company and that neither Arden Partners nor any person acting on its behalf has or shall have any liability for any information, representation or statement contained in this Announcement or the Circular or any information previously published by or on behalf of the Company and will not be liable for any Placee's decision to participate in the Placing based on any information, representation or statement contained in this Announcement, the Circular or otherwise. Each Placee further represents, warrants and agrees that the only information on which it is entitled to rely and on which such Placee has relied in committing itself to subscribe for the Placing Shares is contained in this Announcement and/or the Circular and any information previously published by the Company by notification to a Regulatory Information Service, such information being all that it deems necessary to make an investment decision in respect of the Placing Shares and that it has neither received nor relied on any other information given or representations, warranties or statements made by any of Arden Partners or the Company and neither Arden Partners nor the Company will be liable for any Placee's decision to accept an invitation to participate in the Placing based on any other information, representation, warranty or statement. Each Placee further acknowledges and agrees that it has relied on its own investigation of the business, financial or other position of the Company in deciding to participate in the Placing;
7. acknowledges and agrees that neither Arden Partners nor any person acting on behalf of it nor any of its affiliates has or shall have any liability for any publicly available or filed information, or any representation relating to the Company, provided that nothing in this paragraph excludes the liability of any person for fraudulent misrepresentation made by that person;
8. represents and warrants that neither it, nor the person specified by it for registration as a holder of Placing Shares is, or is acting as nominee or agent for, and that the Placing Shares will not be allotted to, a person who is or may be liable to stamp duty or stamp duty reserve tax under any of sections 67, 70, 93 and 96 of the Finance Act 1986 (depositary receipts and clearance services);
9. represents and warrants that it has complied with its obligations in connection with money laundering and terrorist financing under the Proceeds of Crime Act 2002, the Terrorism Act 2000, the Terrorism Act 2006 and the Money Laundering Regulations 2007 (the "Regulations") and, if making payment on behalf of a third party, that satisfactory evidence has been obtained and recorded by it to verify the identity of the third party as required by the Regulations;
10. if a financial intermediary, as that term is used in Article 3(2) of EU Directive 2003/71/EC (the "Prospectus Directive") (including any relevant implementing measure in any member state), represents and warrants that the Placing Shares subscribed for by it in the Placing will not be acquired on a non-discretionary basis on behalf of, nor will they be acquired with a view to their offer or resale to, persons in a member state of the European Economic Area which has implemented the Prospectus Directive other than to qualified investors, or in circumstances in which the prior consent of Arden Partners has been given to the proposed offer or resale;
11. represents and warrants that it has not offered or sold and, prior to the expiry of a period of six months from Admission, will not offer or sell any Placing Shares to persons in the United Kingdom, except to persons whose ordinary activities involve them in acquiring, holding, managing or disposing of investments (as principal or agent) for the purposes of their business or otherwise in circumstances which have not resulted and which will not result in an offer to the public in the United Kingdom within the meaning of section 85(1) of the FSMA;
12. represents and warrants that it has not offered or sold and will not offer or sell any Placing Shares to persons in the European Economic Area prior to Admission except to persons whose ordinary activities involve them in acquiring, holding, managing or disposing of investments (as principal or agent) for the purposes of their business or otherwise in circumstances which have not resulted in and which will not result in an offer to the public in any member state of the European Economic Area within the meaning of the Prospectus Directive (including any relevant implementing measure in any member state);
13. represents and warrants that it has only communicated or caused to be communicated and will only communicate or cause to be communicated any invitation or inducement to engage in investment activity (within the meaning of section 21 of the FSMA) relating to the Placing Shares in circumstances in which section 21(1) of the FSMA does not require approval of the communication by an authorised person;
14. represents and warrants that it has complied and will comply with all applicable provisions of the FSMA with respect to anything done by it in relation to the Placing Shares in, from or otherwise involving, the United Kingdom;
15. (i) represents and warrants that it is a person falling within Article 19(5) and/or Article 49(2)(a) to (d) of the Financial Services and Markets Act 2000 (Financial Promotion) Order 2005 or is a person to whom this Announcement may otherwise be lawfully communicated; and (ii) acknowledges that any offer of Placing Shares may only be directed at persons to the extent in member states of the European Economic Area who are "qualified investors" within the meaning of Article 2(1)(e) of the Prospectus Directive and represents and agrees that it is such a qualified investor;
16. represents and warrants that it is entitled to subscribe for Placing Shares under the laws of all relevant jurisdictions which apply to it, and that its subscription of the Placing Shares will be in compliance with applicable laws and regulations in the jurisdiction of its residence, the residence of the Company, or otherwise;
17. undertakes that it (and any person acting on its behalf) will make payment for the Placing Shares allocated to it in accordance with this Announcement, the Circular and the relevant contract note on the due time and date set out herein, failing which the relevant Placing Shares may be placed with other subscribers or sold as Arden Partners may in its discretion determine and without liability to such Placee;
18. acknowledges and agrees that neither Arden Partners, nor any of its affiliates, nor any person acting on its behalf, is making any recommendations to it advising it regarding the suitability of any transactions it may enter into in connection with the Placing and that participation in the Placing is on the basis that it is not and will not be a client of Arden Partners for the purposes of the Placing and that Arden Partners has no duties or responsibilities to it for providing the protections afforded to its clients or for providing advice in relation to the Placing nor in respect of any representations, warranties, undertakings or indemnities contained in the Placing Agreement nor for the exercise or performance of any of its rights and obligations thereunder including any rights to waive or vary any conditions or exercise any termination right;
19. undertakes that the person whom it specifies for registration as holder of the Placing Shares will be (i) itself or (ii) its nominee, as the case may be. Neither Arden Partners nor the Company will be responsible for any liability to stamp duty or stamp duty reserve tax resulting from a failure to observe this requirement. Each Placee and any person acting on behalf of such Placee agrees to participate in the Placing and it agrees to indemnify the Company and Arden Partners in respect of the same on the basis that the Placing Shares will be allotted to the CREST stock account of Arden Partners who will hold them as nominee on behalf of such Placee until settlement in accordance with its standing settlement instructions;
20. acknowledges and agrees that these terms and conditions and any agreements entered into by it pursuant to these terms and conditions and any non-contractual obligations arising out of or in connection with such agreements shall be governed by and construed in accordance with the laws of England and Wales and it submits (on behalf of itself and on behalf of any person on whose behalf it is acting) to the exclusive jurisdiction of the English courts as regards any claim, dispute or matter arising out of any such contract, except that enforcement proceedings in respect of the obligation to make payment for the Placing Shares (together with any interest chargeable thereon) may be taken by the Company or Arden Partners in any jurisdiction in which the relevant Placee is incorporated or in which any of its securities have a quotation on a recognised stock exchange;
21. acknowledges and agrees that Arden Partners and its affiliates will rely upon the truth and accuracy of the representations, warranties and acknowledgements set forth herein and which are irrevocable and it irrevocably authorises Arden Partners to produce this Announcement, pursuant to, in connection with, or as may be required by any applicable law or regulation, administrative or legal proceeding or official inquiry with respect to the matters set forth herein;
22. agrees to indemnify and hold the Company, Arden Partners and their respective affiliates harmless from any and all costs, claims, liabilities and expenses (including legal fees and expenses) arising out of or in connection with any breach of the representations, warranties, acknowledgements, agreements and undertakings contained herein and further agrees that these provisions shall survive after completion of the Placing;
23. represents and warrants that it will acquire any Placing Shares subscribed for by it for its account or for one or more accounts as to each of which it exercises sole investment discretion and it has full power to make the acknowledgements, representations and agreements herein on behalf of each such account;
24. acknowledges and agrees that its commitment to subscribe for Placing Shares on the terms set out in this Announcement, the Circular and in the relevant contract note will continue notwithstanding any amendment that may in future be made to the terms of the Placing and that Placees will have no right to be consulted or require that their consent be obtained with respect to the Company's conduct of the Placing.
25. understands that no action has been or will be taken by any of the Company, Arden Partners or any person acting on behalf of the Company or Arden Partners that would, or is intended to, permit a public offer of the Placing Shares in any country or jurisdiction where any such action for that purpose is required;
26. in making any decision to subscribe for the Placing Shares, confirms that it has knowledge and experience in financial, business and international investment matters as is required to evaluate the merits and risks of subscribing for the Placing Shares. It further confirms that it is experienced in investing in securities of this nature in the sector in which the Group operates and is aware that it may be required to bear, and is able to bear, the economic risk of, and is able to sustain a complete loss in connection with the Placing;
27. represents and warrants that it has (i) made its own assessment and satisfied itself concerning legal, regulatory, tax, business and financial considerations in connection herewith to the extent it deems necessary; (ii) had access to review publicly available information concerning the Group that it considers necessary or appropriate and sufficient in making an investment decision; (iii) reviewed such information as it believes is necessary or appropriate in connection with its subscription of the Placing Shares; and (d) made its investment decision based upon its own judgment, due diligence and analysis and not upon any view expressed or information provided by or on behalf of Arden Partners;
28. understands and agrees that it may not rely on any investigation that Arden Partners or any person acting on its behalf may or may not have conducted with respect to the Company, any other member of the Group, or the Placing and Arden Partners has not made any representation to it, express or implied, with respect to the merits of the Placing, the subscription for the Placing Shares, or as to the condition, financial or otherwise, of the Company, its Group, or as to any other matter relating thereto, and nothing herein shall be construed as a recommendation to it to subscribe for the Placing Shares. It acknowledges and agrees that no information has been prepared by Arden Partners or the Company for the purposes of this Placing; and
29. acknowledges that time is of the essence as regards its obligations under this Appendix.
By participating in the Placing, each Placee (and any person acting on Placee's behalf) subscribing for Placing Shares acknowledges and agrees that:
(i) the Placing Shares are being offered and sold only pursuant to Regulation S under the Securities Act in a transaction not involving a public offering of securities in the United States and the Placing Shares have not been and will not be registered under the Securities Act; and
(ii) the offer and sale of the Placing Shares to it has been made outside of the United States in an "offshore transaction" (as such term is defined in Regulation S under the Securities Act) and it is outside of the United States during any offer or sale of Placing Shares to it.
The foregoing representations, warranties and confirmations are given for the benefit of the Company as well as Arden Partners. The agreement to settle a Placee's subscription (and/or the subscription of a person for whom such Placee is contracting as agent) free of stamp duty and stamp duty reserve tax depends on the settlement relating only to the subscription by it and/or such person direct from the Company for the Placing Shares in question. Such agreement assumes, and is based on a warranty from each Placee, that neither it, nor the person specified by it for registration as holder, of Placing Shares is, or is acting as nominee or agent for, and that the Placing Shares will not be allotted to, a person who is or may be liable to stamp duty or stamp duty reserve tax under any of sections 67, 70, 93 and 96 of the Finance Act 1986 (depositary receipts and clearance services). If there are any such arrangements, or the settlement relates to any other dealing in the Placing Shares, stamp duty or stamp duty reserve tax may be payable. In that event the Placee agrees that it shall be responsible for such stamp duty or stamp duty reserve tax, and neither the Company nor Arden Partners shall be responsible for such stamp duty or stamp duty reserve tax. If this is the case, each Placee should seek its own advice and notify Arden Partners accordingly.
In addition, Placees should note that they will be liable for, and each Placee agrees to indemnify on an after-tax basis and hold Arden Partners and/or the Company and each of their respective affiliates harmless from any stamp duty and all other stamp, issue, securities, transfer, registration, documentary or other duties or taxes (including any interest, fines or penalties relating thereto) payable outside the United Kingdom by them or any other person on the subscription by them of any Placing Shares or the agreement by them to subscribe for any Placing Shares.
Each Placee and any person acting on behalf of each Placee acknowledges and agrees that Arden Partners or any of its affiliates may, at their absolute discretion, agree to become a Placee in respect of some or all of the Placing Shares.
When a Placee or person acting on behalf of the Placee is dealing Arden Partners, any money held in an account with Arden Partners on behalf of the Placee and/or any person acting on behalf of the Placee will not be treated as client money within the meaning of the rules and regulations of the FSA made under the FSMA. The Placee acknowledges that the money will not be subject to the protections conferred by the client money rules; as a consequence, this money will not be segregated from Arden Partners' money in accordance with the client money rules and will be used by Arden Partners in the course of its own business; and the Placee will rank only as a general creditor of Arden Partners.
All times and dates in this Announcement may be subject to amendment. Arden Partners shall notify the Placees and any person acting on behalf of the Placees of any changes.
Past performance is no guide to future performance and persons needing advice should consult an independent financial adviser.
APPENDIX 2
DEFINITIONS
The following definitions apply throughout this Announcement unless the context otherwise requires:
"Act" the Companies Act 2006 (as amended)
"Admission" admission of the Placing Shares to trading on AIM
"AIM" the AIM Market operated by the London Stock Exchange
"AIM Rules" the AIM Rules for Companies published by the London Stock Exchange from time to time
"Announcement" means this announcement (including the Appendices)
"Appendix" an appendix to this Announcement
"Arden Partners" Arden Partners plc, the Company's nominated adviser and broker
"Circular" the circular to Shareholders published by the Company on the date of this Announcement in connection with the Placing
"Closing Price" the closing middle market price as detailed in the AIM Appendix to the Daily Official List of the London Stock Exchange
"Company" or "AssetCo" AssetCo plc
"CREST" the relevant system (as defined in the Uncertificated Securities Regulations 2001) for the paperless settlement of trades and the holding of uncertificated securities operated by Euroclear UK & Ireland Limited
"Deferred Shares" the deferred shares of 24 pence each proposed to be created pursuant to the Share Reorganisation
"Directors" or "Board" the directors of the Company, or any duly authorised committee thereof
"Existing Ordinary Shares" the 90,712,740 Ordinary Shares in issue at the date of this Announcement
"FSA" the Financial Services Authority in its capacity as the competent authority for the purposes of Part VI of the FSMA
"FSMA" the Financial Services and Markets Act of 2000 (as amended)
"Group" the Company and its subsidiaries
"London Stock Exchange" London Stock Exchange plc
"Ordinary Shares" prior to the Share Reorganisation becoming effective, ordinary shares of 25 pence each in the capital of the Company and, following the Share Reorganisation becoming effective, ordinary shares of one penny each
"Placing" the conditional placing of the Placing Shares at the Placing Price by Arden Partners as agent for and on behalf of the Company pursuant to the terms of the Placing Agreement
"Placing Agreement" the agreement dated 3 March 2011 between the Company and Arden Partners relating to the Placing, further details of which are set out in this Announcement
"Placing Price" 10 pence per Placing Share
"Placing Shares" the 160,000,000 new Ordinary Shares of one penny each to be issued by the Company in connection with the Placing
"Resolutions" the resolutions set out in the notice general meeting contained in the Circular
"Shareholders" holders of Ordinary Shares
"Share Reorganisation" the share reorganisation proposed by the Company to subdivide each Ordinary Share of 25 pence into an Ordinary Share of one penny and a Deferred Share
"UK" or "United Kingdom" the United Kingdom of Great Britain and Northern Ireland
"United States" or United States of America, its territories and possessions, any
"USA" state of the United States of America and the District of Columbia and all other areas subject to its jurisdiction
This information is provided by RNS